billy joel the stranger (1977)

Billy JoelThe Stranger

(1977)

Ps’ Evidence in Sorenson

• Responding “Yes” to P’s Question

• Timing (eviction right after saw Afr-Am girls in apt.)

• Said to “anxious” neighbor: he did not intend to rent to 2 Afr-Am girls

• Admitted preference for no Afr-Am tenants

• No Afr-Am residents in complex

D’s Evidence in Sorenson

• Testimony re fury re former tenant & party• Parties, noise, complaints, harm to apt.• Explanation of “yes”: to annoy Sorenson • Explanation of “ no intent to rent”: they hadn’t

asked to rent• Explanation of no Afr-Am residents: none had

ever applied • D’s involvement in civic race relation projects

P’s Additional Evidence in Marable

• History: No Afr-Am tenants ever

• HUD conclusion: Race was reason

• Changing stories

• D’s admissions of racial exclusion to prior employee (Trial Court found not credible)

P’s Difficulties in Marable

• Changed testimony re deposit

• Contradicted by manager re statement re marital status

• Contradicted by Mrs. Sims at credit service

STANDARDS OF REVIEW OF FINDINGS OF FACT

• Jury: No Reasonable Juror could find …

• Judge: Clear Error– definite & firm

impression mistake was committed

– can reverse even if some evidence supporting

Application of Clear Error Test

• D’s intent = finding of ultimate fact – Not clear error test– Only give deference on intermediate findings

• Must concede all credibility issues to D

• CtApp: Undisputed documentary evidence shows Ds treated White applicants differently.

DQ22: Why might the same court that affirmed in Sorenson feel

comfortable reversing in Marable?

DQ22: Why might the same court that affirmed in Sorenson feel

comfortable reversing in Marable?

• Judge v. Jury

• Trial Judge not very credible (mis/overstates record)

• Note that Marable may have foregone jury trial b/c of concerns w all White jury as in Sorenson

Both cases: Statutes violated if race is “one significant factor.”

• Not the standard anymore for non-govt defendants!!

• More complex mixed motive analysis we’ll do next week in Cato

DISCRIMINATION HARD TO PROVE

• Hard to get evidence of motives

• Clients not perfect

• Ds who are regular players likely to be more sophisticated than in Marable

• Decision-makers may be disinclined to recognize discrimination

ANNOUNCEMENTS

• Paper/Project Proposal Due Tomorrow Noon

ANNOUNCEMENTS

• Paper/Project Proposal Due Tomorrow Noon

• Assignment I Due Next Tuesday– Video on Reserve at Circulation Desk– Date of Ordinary Moments is 1985– Qs?

ANNOUNCEMENTS

• Paper/Project Proposal Due Tomorrow Noon

• Assignment I Due Next Tuesday

• Information Memo #1 Posted Online– Write-Up of 1st Set of Discussion Groups– Short Problems Applying Marina Point– Excerpt from Fall River (Govt Intent Case)– List of Discussion Groups & Tasks for Next

Tuesday

ANNOUNCEMENTS

• Paper/Project Proposal Due Tomorrow Noon

• Assignment I Due Next Tuesday

• Information Memo #1 Posted Online

• Quick Return to Student Insights– Robert: Blatt & Lack of Attention to Powerless– Oren: Significance of State Landlord-Tenant

Rules

RIZZO

HIMALAYAS

SPECIAL PROBLEMS OF GOVERNMENT INTENT

DQ23: What does it mean to say that a legally-created corporate entity like the City of Philadelphia had a discriminatory purpose?

Whose state of mind is relevant to determining the City’s “purpose?”

SPECIAL PROBLEMS OF GOVERNMENT INTENT

DQ24: The Supreme Court does not require the plaintiff to prove that racial animus is the city’s sole motive, but only “a motivating factor” Try to elaborate in your own words what this standard means in the context of a decision by a city.?

SPECIAL PROBLEMS OF GOVERNMENT INTENT

We could use a higher standard (primary, dominant, significant, etc.). Sensible to just say “motivating”?

SPECIAL PROBLEMS OF GOVERNMENT INTENT

We could use a higher standard (primary, dominant, significant, etc.). Sensible to just say “motivating”?

SPECIAL PROBLEMS OF GOVERNMENT INTENT

DQ26: Suppose a city council votes 8-5 to pass a measure. To prevail under the ‘motivating factor’ test, how many councilmembers must a plaintiff show had a discriminatory purpose?

SPECIAL PROBLEMS OF GOVERNMENT INTENT

CASE VOTE # BAD INTENT

Church (11th Cir.) 3-2 1

City of Birmingham (6th Cir.)

4-3 2

Fall River (1st Cir.) 6-2 1 + Non-Voting Mayor

SPECIAL PROBLEMS OF GOVERNMENT INTENT

CASE VOTE # BAD

INTENTRESULT

Church (11th Cir.)

3-2 1 Insufficient

City of Birmingham (6th Cir.)

4-3 2 Sufficient

Fall River (1st Cir.)

6-2 1 + NV Mayor Insufficient

Arlington Heights I (U.S. 1977): Evidence Needed to Prove Intent in a Disparate Treatment Case

Against the Govt

Arlington Heights II (7th Cir. 1977) (on remand): Test for Disparate

Impact in a Case Against the Govt

Arlington Heights I Factors

1. Discriminatory Impact

2. Historical Background

3. Sequence of Events Leading to Decision

4. Departures from Normal Procedures

5. Departures from Normal Substantive Criteria

6. [Legislative or Administrative History]

THE MANHATTAN TRANSFER

Pinchback (ALPS)

DQ32: Plaintiff’s Evidence of Discrimination?

Pinchback (ALPS)

Good Case to Attribute to Board:• Board Acting Collectively & Explicitly

• President has Authority to Act

• Note Court Doesn’t Treat as Vicarious Liability (Agent Not Treated As Employee)

DQ33: FUTILE GESTURE DOCTRINE

Failure to apply for job doesn’t preclude recovery if deterred from applying by accurate knowledge of employer’s discriminatory policies.

DQ33: FUTILE GESTURE DOCTRINE

Failure to apply for housing doesn’t preclude recovery if deterred from applying by accurate knowledge of housing provider’s discriminatory policies.

DQ33: FUTILE GESTURE DOCTRINE

Failure to apply for housing doesn’t preclude recovery if deterred from applying by accurate knowledge of housing provider’s discriminatory policies.

Purpose?

Supreme Court: “[I]f desire for a job [or housing] is not translated into a formal application solely because of his unwillingness to

engage in a futile gesture, he is as much a victim of discrimination” as those who apply and are rejected.

DQ33: FUTILE GESTURE DOCTRINE

Failure to apply for housing doesn’t preclude recovery if deterred from applying by accurate knowledge of housing provider’s discriminatory policies.

Why not require the plaintiff to apply and be rejected in order to get

standing to sue?

Supreme Court: People shouldn’t have to subject themselves to the

humiliation of explicit & certain rejection.

JUSTIFY DOCTRINE?

Mcd-Dgs Prima Facie Case

Ordinary Version• Protected Class• Applied• Qualified• Denied• Stayed Open/Went to

Non-Class Member

Mcd-Dgs Prima Facie Case

Ordinary Version• Protected Class• Applied• Qualified• Denied• Stayed

Open/Went to Non-Class Member

• Futile Gesture• Protected Class• Reliably Informed of

Discrim Policy/Would Have Applied

• Qualified• Would Have Been

Rejected

Mcd-Dgs Prima Facie CaseOrdinary Version• Protected Class• Applied• Qualified• Denied• Stayed

Open/Went to Non-Class Member

• Futile Gesture• Protected Class• Reliably Informed of

Discrim Policy/Would Have Applied

• Qualified• Would Have Been

Rejected

PROS & CONS?

DQ35: D’s Claim: Futile Gesture Doctrine Inapplicable; Employment

Different from Housing

• Defendant’s Arguments Why?

DQ35: D’s Claim: Futile Gesture Doctrine Inapplicable; Employment

Different from Housing

Defendant’s Arguments Why?• Employees have better info re employer

policies than housing seekers do re housing policies

• Too attenuated; leads to many frivolous suits

Court’s Response?

DQ35: D’s Claim: Futile Gesture Doctrine Inapplicable; Employment

Different from Housing

Defendant’s Arguments Why?• Better info re employer policies• Too attenuated frivolous suits

Court’s Response?• Elements sufficient protection ag. frivolous suits• Policy: Shouldn’t Have to Apply

Satisfactory?

CATO v. JILEK

Mcd-Dgs Prima Facie Case

Ordinary Version• Protected Class• Applied• Qualified• Denied• Stayed Open/Went to

Non-Class Member

Mcd-Dgs Prima Facie Case

Ordinary Version• Protected Class• Applied• Qualified• Denied• Stayed

Open/Went to Non-Class Member

Variations So Far• -• Futile Gesture or Tried to• D Unaware of

Qualifications• Futile Gesture or

Effective Denial• -

Mcd-Dgs Prima Facie Case

Ordinary Version• Protected Class• Applied• Qualified• Denied• Stayed

Open/Went to Non-Class Member

Variations in Cato• + D aware of (Probably

Always Implicit)• -• -• -• Skips (Probably Implicit)

Mcd-Dgs Prima Facie Case

Ordinary Version• Protected Class• Applied• Qualified• Denied• Stayed

Open/Went to Non-Class Member

Variations: All 4 Cases• + D aware of• Futile Gesture or Tried to• D Unaware of

Qualifications• Futile Gesture or

Effective Denial• -

DQ36: Why does the court say the Mcd-Dgs prima facie test is unnecessary in this

particular case?

DQ37: Plaintiff’s Evidence?

DQ37: Plaintiff’s Evidence?

• D lied re reason for denial• Testers Evidence

– D asks testers re race– D says “Well, that’s fine”– D expresses concern re Afr-Ams to testers

• D admits said no because of fear of other tenants’ response to Ps because of race

Court says fear of trouble in complex or neighborhood is not a defense. Why?

DQ37: Ds’ Atty: Ds Choice: Married Couple v. Couple Who Might Not Marry

• He said not sure if Ps were really getting married• He asked Ps & testers re marital status• She preferred not to rent to Ps & said one

reason was marital stat

Why isn’t this sufficient evidence to take the case to trial?

Problems w Ds’ Atty’s Story

• Impossible for him to have known of that choice when he lied to Ps re availability

• He had offered them an application day before; suggests concern w race, not marital status

• Her thoughts irrelevant– She deferred to him – They had allowed unmarried couples

• Story inconsistent with interrogatory answers

Why is the court unhappy with the Ds’ atty?

COURSE LOGISTICS

• Assignment II

• Unit Three

• Old Exams Online

• Responses to Paper Proposals

MIXED MOTIVE ANALYSIS

1. Plaintiff proves discrimination is a “motivating factor”

2. Burden on Defendant to prove it would have made same decision anyway based on legitimate motive. If D succeeds…?

MIXED MOTIVE ANALYSIS

1. Plaintiff proves discrimination is a “motivating factor”

2. Burden on Defendant to prove it would have made same decision anyway based on legitimate motive. If D succeeds…?

• PW: D wins completely

MIXED MOTIVE ANALYSIS

1. Plaintiff proves discrim. is a “motivating factor”

2. Burden on Defendant to prove it would have made same decision anyway based on legitimate motive. If D succeeds…?

• PW: D wins completely

• 1991 Amdts: • No back pay or reinstatement• Can get Declaratory or Injunctive Relief + Attys

Fees

WHY DOES THIS MATTER?

DQ39: SEQUENCE OF EVENTS

1. Caselaw: Title VIII (FHA) like Title VII

2. Price Waterhouse interprets Title VII

3. CtApp cases apply PW to Title VIII

4. Congress amends Title VII (but not Title VIII) to alter result PW

PARIS LEFT FRONT 40-41-39Drude, Rachel Kim, Michael Lomax, Chris

Steinman, Rebecca Tankha, Neena

Townsend, HenryWolgin, Michael

LONDON 39-40-41 LEFT REAR• Frazer, Amanda • Hager, Lauren• McGinn, Shannon• Meisels, Esther• Moskowitz, Oren• Muller, Erika• Oppenheimer, Daniel

• ROME RIGHT REAR 41-39-40• Canepa, Bernard • Harrison, Stacy • James, Robert • Mroczek, Ashley• Nuzum, Robert• Ohayon, Corey• Potu, Swetha• Zarin, Gregory